DOTTORATO DI RICERCA IN DIRITTO E ECONOMIA

XXVII CICLO

Empirical Comparative Law

Tutor
Chiar.mo Prof. Roberto Pardolesi

Candidato
Avv. Valerio Cosimo Romano

A.A. 2014/2015
A sledgehammer breaks glass but forges steel.

(L. Trotsky)
 TABLE OF CONTENTS

AKNOWLEDGMENTS........................................................................................................................................... 6

INTRODUCTION ................................................................................................................................................... 7
CHAPTER I

THE EMPIRICAL ZEITGEIST OF COMPARATIVE LEGAL STUDIES

I. A STRUCTURAL STALEMATE .......................................................................................................................... 12

II. A SHIFTING PARADIGM ................................................................................................................................. 16

III. FRACTIONS OF A FULL FIGURE .................................................................................................................. 29

IV. CONCLUSION: PAST IS PROLOGUE ............................................................................................................ 37

CHAPTER II

ON METHODS:
THE EMPIRICAL COMPARATIVE SCHOLAR AS JANUS BIFRONS

I. INTRODUCTION: WHAT COUNTS AS “EMPIRICAL”? ................................................................................. 39

II. QUALITATIVE METHODS .............................................................................................................................. 50

III. QUANTITATIVE METHODS.......................................................................................................................... 57

IV. TRIANGULATION, METHODS MIXING AND INTERDISCIPLINARY CHERRY-PICKING. ............... 63

V. JANUS BIFRONS ................................................................................................................................................ 66

CHAPTER III

AT THE CARAVANSERAI:
FRONTIERS AND GOALS OF EMPIRICAL COMPARATIVE LAW

I. AT THE CARAVANSERAI ................................................................................................................................. 69

II. FRONTIERS........................................................................................................................................................ 70

III. AN “IDEAL” LAW?........................................................................................................................................... 74

IV. UNDERSTANDING, UNIFICATION AND REFORM .................................................................................. 76

V. THE EMPIRICAL COMPARATIVE SCHOLAR: HOMO UNIVERSALIS ...................................................... 78

CONCLUSIONS .................................................................................................................................................... 80

REFERENCES....................................................................................................................................................... 83
 AKNOWLEDGMENTS
This thesis has been planned and composed in my years as Ph.D. student
at LUISS Guido Carli, as well as in the period spent at Harvard Law
School as Visiting Researcher. Parts of it have been presented at the
VS/VR Colloquium of Harvard Law School in 2013 and at 10th
Conference of Law and Economics held at La Sapienza University in
2014. Prof. Peer Zumbansen, Prof. Massimiliano Vatiero, Netta Barack
Corren and all the participants to the abovementioned seminars provided
extremely useful comments and suggestions.

During my Ph.D. years my supervisor, Prof. Roberto Pardolesi, became a

second father to me. My devotion to him goes enormously beyond the
gratitude for his academic guidance and support.

I am also extremely grateful to Prof. Holger Spamann for his patient and
constant availability during my visiting at Harvard Law School.

Last but not least, I thank my parents for their personal support
throughout the years.

All errors, omissions and imperfections must of course be attributed to

myself only. Time is always a tyrant. This thesis is still a work in progress,
let us say a reasoned outline, submitted for the sole purpose of fulfilling my
doctoral requirements. Therefore, I expect to expand upon and ameliorate
it in the near future, as the topic deserves to.

6
 INTRODUCTION

This short methodological manifesto investigates the Weltanschauung

behind empiricism in comparative legal studies, which is part of a bigger

picture aimed at establishing a true science of law.

Apart from this introduction, the thesis consists of three chapters and a

final closure.

The first chapter, The Empirical Zeitgeist of Comparative Legal

Studies, reflects on the structural stalemate experienced by comparative

law at the outset of the new millennium, mainly due to the centennial

underdevelopment of its methodological foundations, which resulted in an

inevitable saturation of traditional scholarship.

It gives account of the renewed interaction of legal scholars with germane

sciences and of the entry in the game of scholars from other vocational

fields, which fostered different streams of empirical scholarship.

The main claim of this chapter is that those streams are only fractions of a

full figure: they belong to the same genus, blossomed under the auspices

of a newly established analytical structure. Nonetheless, notwithstanding

the shaking of critical mass which characterized the enterprise,

comparative scholars have always devoted little if no attention to the

7
establishment of a unitary methodological framework. This suggests that

there is a possibility of producing cutting-edge scholarship by exploiting

the virtuous spiral triggered by new methodological waves and that

opportunities to produce valuable works are abundant to those who want

to refute methodological orthodoxy.

The second chapter, On Methods: The Empirical Comparative

Scholar As Janus Bifrons, is devoted to the design of comparative

research, declined in its qualitative and quantitative components. First, it

establishes what can be termed as “empirical”, and how do we

contextualize it in comparative legal studies.

Then, it gives account of the fact that the observational attitude embedded

in comparative legal scholars makes them more prone to empirical analysis

than what can be initially believed.

Further, it claims that the reductionism inherent to a linguistic backwash

misleadingly identifying empirical analysis as a mere investigation of

quantitative properties, in contrast with the investigation of qualitative

properties, is wrong because an authentic empirical approach needs to be

strongly grounded in both of the cultures.

It therefore reviews the features, pitfalls and potentials of the two cultures

and discusses how triangulation, methods mixing and interdisciplinary

8
cherry-picking can play a key role in building an integrated infrastructure

of empirical comparative studies.

Finally, the chapter ends with the main claim that comparative scholars

will find their long craved methodology not by replacing traditional

comparative law, but rather by tackling and strengthening it with the

multilayered complementariness of the qualitative and quantitative

traditions, so to generate a scholarship which gains theoretical perspective

via integration with observational evidence.

In this sense, the scholar can be identified as Janus Bifrons, two-headed

roman god which makes of unity within separation its inner strength.

The third chapter, At The Caravanserai: Frontiers And Goals Of

Empirical Comparative Law, revisits our journey and warns the reader

from taking the empirical comparative enterprise with a “just do it” or

“just don’t” approach. The scholarship requires to be handled, safeguarded

and promoted with attention. Also, it must be not identified as and the

one and only possible epiphany of comparative legal studies. Yet, it may

humbly serve to those who want to take advantage of technology and

update their methodological toolkits for dealing with a brand new wide

array of open questions, which can in turn serve as a methodological guide

towards a better understanding, reform and unification.

9
The chapter then discusses some potential new directions: a deeper

attention to longitudinal studies, the introduction of behavioral analysis,

the identification of field-specific tools and the creation of an integrated

jargon.

It claims that the fact that different solutions are used in order to address

functionally equivalent problems reveals that, all in all, there is not a single

best rule which can fit all of the legal systems into which it is imported or

exported.

Efficiency is just one the possible tertia comparationis, against to which

different legal systems can be measured. Comparative scholarship can

however assess the performance of legal rules on the basis of alternative

polarities such as fairness, thus linking the ideal optimum to moral values

more than to economic notions.

This consideration makes us aware of the intrinsic degree of political

ideology embedded in empirical comparative research, which exerts a

considerable potential in influencing public policy. The scholarship shall

therefore be directed towards a better understanding, unification and

reformation of legal systems.

Hence, comparative legal scholars shall assume a subversive role in respect

to the legal establishment, as with regard to the means and ends they

advocates for, as for their approach to the scholarship. They shall (re)gain

10
a role as social engineers, soaking into the basic tenet of humanist

academia: the construction of an homo universalis, moved by an

unquenchable thirst for knowledge and an imaginative mind. A scholar

who takes on his shoulders a rounded education in order to achieve the

polymathic traits which enables him to acquire solid skills in different

fields and methods. Such personalities being around, technology will have

a long and difficult task in getting ahead of human beings.

Rome, 25 April 2015

Valerio Cosimo Romano

11
 CHAPTER I

THE EMPIRICAL ZEIGEIST

OF COMPARATIVE LEGAL STUDIES

SUMMARY: I. A structural stalemate. – II. The shifting paradigm. – III.

Fractions of a full figure. – IV. Conclusion: past is prologue.

I. A STRUCTURAL STALEMATE

At the outset of the new Millennium, comparative law experiences a

structural stalemate. While some proclaim its triumph1 and others write its

obituary2, legions struggle in the midst, attempting to revitalize a

scholarship doomed by a centennial underdevelopment of methodological

foundations3. In fact, comparative scholars had started to denounce the

1R. Sacco, One Hundred Years of Comparative Law, 75 Tulane Law Review,
2001, p. 1159; E. Örücü, The Enigma of Comparative Law, Leiden, 2004.
2M. Siems, The End of Comparative Law, J. of Comp. Law, Vol. 2, 2007, pp.
133-150; R. Hyland, Evening in Lisbon, in Festschrift für Claus-Wilhelm Canaris
zum 70 Geburtstag, 2007, p. 1175.
3 This becomes even more remarkable when one takes into consideration
that comparative law itself might be regarded as a method. For a reference
to comparative scholars’ disappointment, see A. Riles, Wigmore’s Treasure
Box: Comparative Law in the Era of Information, 40 Harvard International Law
Journal pp. 221-283, 1999; W. Ewald, Comparative Jurisprudence (I): What
Was It Like to Try a Rat?, 143 U. PA. L. Rev. 1889, 1891, 1995; R. B.
Schlesinger et al., Comparative law, 1988, p. 311; M. Reimann, The End of
Comparative Law as an Autonomous Subject, 11 TIL. EUR. & Civ. L. F. 49,
1996.

12
absence of a scientific approach already at the beginning of the 20th

century4, at the first Congress of Comparative Law held in Paris. A

generation later, the problem was still echoing under the trees of Harvard

Yard5. It was only with the Grands Systèmes projects6 of the second half of

20th century - which provided materials for doctrinal debates on single

aspects of law which lasted for decades - that the academic focus diverted

from the methodological question. Unreceptive of the Darwinian lesson7,

this loop of classifications and reclassifications resulted in a progressive

saturation of traditional scholarship8.

4 R. Saleilles, Conception et objet de la science du droit comparé, in Proceeds of Paris

Congress, p. 167; G. Tarde, Le Droit comparè et la sociologie, , in Congres
International de Droit Comparè tenu a Paris du 31 juillet au 4 août 1900, procès-
verbaux des seances et documents, 1905, p. 439.
5Roscoe Pound, What May We Expect From Comparative Law?, 22
A.B.A. J. 56, 1936 p.70; ID., Comparative Law in Space and Time, 4 Amk. J.
Comp. L. 70, 1955.
6 R. David, Traitè elementaire de droit civil comparè: introduction a l'étude des droits
etrangers et la methode comparative, 1950; P. Arminjon, B.B. Nolde, M. Wolff,
Traité de Droit Comparé Tome I, 1950; K. Zweigert, H. Kötz, Introduction to
comparative law, 1977.
7 After Charles Darwin, modern science (re)discovered that taxonomies
are not the mirror of an ordo naturalis, but rather a facilitating convention in
the systematization of available information.
8 It is interesting to note that, according to T. Kuhn, The logic of scientific
discovery, University of Chicago Press; 2nd edition, 1970, p. 71, the
proliferation of different versions of a same theory is usually a symptom of
its crisis.

13
Yet, the primigenial issue had not been addressed. Notwithstanding the

fact that the usefulness of analytical reasoning and data collection had

been recognized well before9 and exhortations to “look out of the cave”10 did

certainly not lack, comparative law was still missing a solid empirical

ground, is to say a systematic investigation of facts by either a quantitative

or a qualitative method, or both11.

9 A. Nussbaum, Die Rechtstatsachenforschung. Ihre Bedeutung fuer Wissenschaft

und Unterricht, Tubingen, 1914; F. Beutel, Some Potentialities of Experimental
Jurisprudence as a New Branch of Social Science. U. of Neb. Press, 1957; R.
Pound, Comparative Law in Space and Time, 4 Amk. J. Comp. L. 70, 1955;
ID., What May We Expect From Comparative Law?, 22 A.B.A. J. 56, 1936;
ID., The Place of Procedure in Modern Law, 1 S. W. L. Rev. 59, 1917; M.
Rosenberg, Foreword to Dollars, Delay and the Automobile Victim; Studies in
Reparation for Highway Injuries and Related Court Problems, 1968. More recently
see R. Sacco, Legal formants: A Dynamic Approach to Comparative Law, 39
Am. J. Comp. L. 1, 25-26, 1991; U. Drobnig, Soziologische
Forschungsmethoden in der Rechtsvergleichung in Rechtssoziologie und
Rechtsvergleichung, 1977, p. 91.
10 H. E. Yntema, Comparative Legal Research: Some Remarks on "Looking out of
the Cave", Michigan Law Review Vol. 54, 7, 1956, pp. 899-928.
11 N. W. Hines, Empirical Scholarship: What Should We Study and How Should
We Study It?, AALS Newsletter, Feb. 2005; M. Reimann, The Progress and
Failure of Comparative Law in the Second Half of the Twentieth Century, Am. J. of
Comp. L. Vol. 50, 4, 2002, pp. 685-686. For a fascinating catalogue of the
many shapes of empirical legal researchers see S. Seidman Diamond,
Empirical Marine Life in Legal Waters: Clams, Dolphins, and Plankton, 2002 U.
Ill. L. Rev., p. 806. M. Suchman, E. Mertz, Elizabeth, A New Legal
Empiricism? Assessing ELS and NLR, in Annual Review of Law and Social
Science Vol. 6, 2010, pp. 555-579;

14
At the same time, the world turned global. Technology experienced an

astonishing exponential progression. Interdisciplinary studies, which share

empiricism as a unifying theme12, took the lead of the legal debate with the

declared aim of reshaping the understanding of legal theory. Information

became a massively collectible, storable and accessible commodity. New

computational techniques, tools and hardware were developed in virtually

every scientific field in order to produce (or as a result) of deeper and

more sophisticated analyses13, resulting in a global trend that sees legal

studies confronting and interfacing other sciences like never before. As a

natural outcome, some advocated a more comprehensive systematization 14

of this interdisciplinary approach. The stepping stones for the emergence

of a new paradigm of comparative legal studies15 were finally being built.

12 McAdams, T. Ulen, 2002 U. Ill. L. Review, p.791. Arguing that legal

history can benefit from economics and statistics, D. Klerman, Statistical
and economic approaches to legal theory, 2002 U. Ill. L. Rev., p. 1167. A certain
lack of empiricism in law and economics is instead denounced by J.
Getman, Contributions of Empirical Data to Legal Research, 35 J. Legal Educ.
489, 1985.
13 T. Kuhn also recognized in its masterpiece The logic of scientific discovery,
op. cit., the key-role that technology can play in the development of new
sciences.
14 T. Ulen, A Nobel Prize in Legal Science: Theory, Empirical Work, and the
Scientific Method in the Study of Law, 2002 U. Ill. L. Rev., 4, p. 876.
15
For sake of clarity, comparative legal studies are hereby defined as an
open subject, identified as comprising of transnational inquiries about the

15
 II. A SHIFTING PARADIGM

Actually, a paradigm shift had already started to flow underground. Piled

up with research questions that could not have been addressed with

traditional tools, more and more scholars had gone hunting into germane

sciences. Delving into the multicolored botany of economics, informatics

and public policy, it took them little time to figure out that legal systems

are huge repositories of data and metadata, strictly intertwined with

macroeconomic factors as well as with individual incentives. Moved by the

smooth singing of the early birds, other scholars from different vocational

fields had then joined the hunt, carrying their toolboxes equipped with

techniques borrowed from economics (econometrics), technology

(software-based metrics) and public policy (agenda setting).

postulates, the implementation, the existence and the effects of legal

norms at both a micro and macro level. Comparative legal research is also
implicit in all of the studies which technically fall within the range of other
disciplines, but propose an investigation of legal topics in a comparative
fashion.
For a first discussion of “implicit comparative law”, see M. Siems, Comparative
Law, Cambridge University Press, 2014 and R. A. Macdonald, K. Glover,
Implicit comparative law, Revue de Droit: Université de Sherbrooke 43, 2013.
See also H. Spamann, Empirical comparative law, 11 Annual Review of Law
and Social Science, forthcoming 2015.

16
Now, one might wonder why (with the exception of few isolated cases16)

this empirification of comparative legal studies did not occur before.

Potential explanations are manifold: first, the uncertainty on the same

mission and methods of the discipline; second, the relatively scarce

demand for quantitative work, which has always been alien to legal

scholars17; third, the persistence of a systemic lack of data and techniques

to process such information18. At the end, it comes as no surprise that the

enterprise resulted in “a path littered with the carcasses of earlier failed starts”19.

16 Isolated adventures to convey comparative legal studies toward an

empirical analysis appeared before, but lacked fortune. See Merryman and
Clark for their Comparative Law - Western. European and Latin American Legal
Systems, 1978, which frequently employs a quantitative approach explicitly
referring to “quantitative comparative law”.
17 This is not anymore true: especially in the U.S. law schools show the
clear trend of hiring scholars from other fields or lawyers who got their
Ph.D. in other neighboring fields. For a theoretical discussion, read T.
Ulen, Op. Cit., p. 900; H. M. Kritzer, The (nearly) forgotten early empirical legal
research in Peter Cane & Herbert M. Kritzer (eds.), The Oxford Handbook of
Empirical Legal Research, Oxford University Press, 2010, p. 897. For a quick
empirical proof, have a look at the resumes of the Faculty at Stanford Law
School.

18 H.M. Kritzer, Op. Cit., p. 895. See also W. Landes, The Empirical Side of
Law & Economics, U. Chi. L. Rev., 2003, pp. 167-180.
19The evocative picture belongs to M. Heise, The Past, Present, and Future of
Empirical Legal Scholarship: Judicial Decision Making and the New Empiricism ,
2002 U. Ill. L. Rev, 819, at 820.

17
If we except what can be regarded as a proto-empiricist agenda20, the first

systematic - yet not comparative in nature - attempts to pursue empiricism

in modern law are to be traced in the realist turn occurred during the

‘30s21. Legal Realism, born to supplant the nineteenth century’s doctrine

centered on legal formalism, aimed at studying law as an applied science

and contextualizing it in society, producing efficiency-based analyses

through the lenses of rigorous techniques and objective descriptions

finalized to the attainment of accurate results.

Unlike their predecessors, legal realists were also motivated by normative

ends, by way of investigating law as it ought be via the assessment of what

law actually is22. However, despite having realized the value of comparative

studies23 and many of its praetorians being themselves valiant comparative

20 Such as Roscoe Pound’s sociological jurisprudence, which aimed at

improving institutions via a systematic study of the actual effects of the
law.
21 In Jurisprudence on parade, 39 Mich. L. Rev. 1154, 1940-1941, one of the
champions of Legal Realism, Hessel Yntema, reconducts the origins of the
movement to two academic works: Llewellyn’s article A Realistic
Jurisprudence – The Next Step, 30 Colum. L. Rev. 431, 1930, and J. Frank’s
Law and the modern mind, Transaction Publishers, 1930.
22J.B. Fischman, Reuniting 'Is' And 'Ought' In Empirical Legal Scholarship in
University of Pennsylvania Law Review, 162(1), 2013.
23 See as example Citation: W. Cook, Scientific Method and the Law, 13 A.B.A.
J. 303, 1927 at 309: “In this connection would be made studies in legal history,
and comparative law, so that we may take advantage of the experience of other

18
scholars24, realists failed in providing a sound theoretical framework

relevant for normative analysis25.

This shortfall determined a progressive draining of the scholarship already

at the end of ‘60s, which left on the field a spurious germination of

movements (Critical Legal Studies, Law & Society, Behavioral Analysis of

Law et cetera). However, these studies still lacked of a comparative nature.

The end of the Century saw a new blossoming of modern empirical legal

studies, in correlation with the development of new computational tools,

led by two similar yet differentiated movements, namely Empirical Legal

Studies (ELS) and New Legal Realism (NLR), both aimed towards

times and other peoples in solving similar problems.” Or H.E. Yntema,

Comparative Legal Research: Some Remarks on "Looking out of the Cave",
Michigan Law Review Vol. 54, No. 7, 1956, at 899-928: “Under these
conditions, it is obvious that scientific study of law must primarily consist of
comparative observation and analysis; indeed, even if the existing experimental
knowledge of how law operates were far less fragmentary than it is-and I for one
do not see how the need and significance of such knowledge could be overstated-it
would still have to be comparative, if only to make sure that what happens in Ann
Arbor is duplicated in Ruritania. In this sense, comparative law is another name for
legal science”. See also H.E. Yntema, American Legal Realism In Retrospect,
14 Vand. L. Rev. 317, 1960-1961, especially at 323.
24 Llewellyn served as one of the principal drafters of the Uniform
Commercial Code (UCC), Yntema helped establishing the American
Journal of Comparative Law, and stressed the failure of realism to
develop comparative analyses.
25 J.B. Fischman, Op. Cit.

19
prescriptive ends, but the first more quantitative oriented and the other

more sociological.

ELS, in contrast with the rejection of doctrine that characterized the first

realists, proposes that the same doctrine be treated as an hypothesis and

empirically tested with the help of new quantitative techniques. ELS’

nature can be considered conservative: it adopts new techniques of

analysis but formulates its own conjectures from within the realm of law,

and not from the outside. In contrast, NLR casts it attention on a

methodological diversity often borrowed from social sciences, without

employing all the quantitative paraphernalia of ELS26 and is therefore to

be considered an innovative enterprise. An intrinsic limit of these

scholarships, however, is that both of them rarely derive the ought from the

is27. From such premises new research streams gained momentum in

comparative legal studies, the most structured being Comparative Law &

Economics, the Legal Origins movement and the Doing Business reports.

With the exception of few forerunning works28, Comparative Law &

Economics shows up in the early 1990s29. Its study was then boosted by

26 M. Suchman, E. Mertz, Op. Cit.

27 J.B. Fischman, Op. Cit.
28Exceptions are S. N. S. Cheung, Transaction Costs, Risk Aversion, and the
Choice of Contractual Arrangements, 22 Journal of Law and Economics 23,

20
two academic works: a monograph by Ugo Mattei30 and three volumes

edited by Gerrit De Geest and Roger van den Bergh31.

The academic output then expanded to an exterminate catalog32 which

ranges from contracts to criminal procedure, passing through labor law

1969; J. H. Merryman, D. Clark, L. M. Friedman, Law and social change in

Mediterranean Europe and Latin America: A handbook of legal and social indicators
for comparative study, Stanford, 1979; S. Levmore, Rethinking Comparative Law:
Variety and Uniformity in Ancient and Modern Tort Law, 61 Tulane Law
Review 235, 1986.
29 S. Levmore, W. J. Stuntz, Remedies and Incentives in Private and Public Law:
A Comparative Essay, 1990 Wis. L. Rev. 483, 496-99, 1990; U. Mattei, R.
Pardolesi, Law and Economics in Civil Law Countries: a Comparative Approach in
International Review of Law and Economics 265, 1991; D. North, Institutions,
Institutional Change and Economic Performance, Int’l Rev. of L. and E.; F.
Easterbrook, D. Fischel, The Economic Structure of Corporate Law, Harvard
University Press, 1991; J. Finsinger, T. Hoehn, A. Pototschnig, The
Enforcement of Product Liability Rules: A Two-Country Analysis of Court Cases, 11
International Review of Law and Economics 133, 1991; M. Roe, M.
Ramseyer, and R. Romano, Some Differences in Corporate Structure in Germany,
Japan, and the United States, 102 Yale Law Journal 1927, 1993; H. Schäffer,
A. Rácz, eds. Quantitative Analyses of Law: Comparative Empirical Study: Sources
of Law in Eastern and Western Europe, Akadémiai Kiadó, 1990.
30U. Mattei, Comparative law and economics. University of Michigan Press,
1997.
31G. de Geest, R. van den Bergh (eds), Comparative Law and Economics, in
The International Library of Critical Writings in Economics series,
Cheltenham: Edward Elgar, 2004.
32For a comprehensive literature review see N. Garoupa, and T. Ginsburg,
Economic Analysis and Comparative Law, 2009; M. Bussani, U. Mattei (eds.)
Cambridge Companion To Comparative Law; N. Garoupa, M. Pargendler, A
Law and Economics Perspective on Legal Families in The Methodologies of Law and

21
and antitrust, up to the point that someone - maybe a little bit too

optimistic - has already identified even a “second wave ”33.

The gist of this scholarship is that economic efficiency serves as a

benchmark against which legal systems can be measured34. Scholars in this

field believe that the analytical tools provided by economics (efficiency in

primis) can be used to build ideal models which can be used as tertia

comparationis in order to establish the proximity of a given system to an

ideal optimum, or which system is more efficient in respect to a given

aspect. In so doing, efficiency assumes itself a comparative meaning35 and

a legal system is able to increasingly select more efficient rules through a

Economics, T. Ulen, ed., Edward Elgar, 2013. Very critical M. Siems,

Measuring the Immeasurable: How to Turn Law into Numbers, in M. Faure, J.
Smits (eds.) Does law matter? On law and economic growth, Intersentia,
2011, p. 115 according to whom “the studies of implicit benchmarking are open to
the challenge that they mislead the reader: they claim to measure the quality of legal rules
in an objective way but in reality they only show how much countries deviate from a
particular legal model, such as the US one”.
33 G.K. Hadfield, The Second Wave of Law and Economics, 46 U. Toronto L.J.

181, 1996; Adhesively R. Michaels, The Second Wave of Comparative Law and
Economics?, University of Toronto Law Journal , vol. 59, no. 2, 197-213,
2009.
34 U. Mattei, A. Monti, Comparative Law and Economics: Borrowing and
Resistance, Global Jurist Frontiers 01/2001; R. Pardolesi, M. Granieri, The
Future of Law Professors and Comparative Law, in The Digest. National Italian
American Bar Association Law Journal 1-26, 2013.
35U. A. Mattei, L. Antoniolli, A. Rossato, Comparative Law and Economics, in
B. Bouckaert, G. De Geest, (eds), Encyclopedia of Law and Economics, vol. I,
Cheltenham, Edward Elgar, 2000.

22
review processes which progressively discard inefficient rules via periodical

reviews36.

According to Comparative Law & Economics’ scholars, efficiency can also

justify divergences. In fact, different countries can develop different

solutions for the same legal problem that are equally efficient. This

explains legal transplants: a legal rule gets transplanted whenever it

increases the efficiency of the receiving system37.

For sure, a great merit which can be ascribed to this scholarship is that, in

contrast with the Chicago School that has traditionally imposed its

dominion on Law & Economics without having a deep historical and

comparative perspective, Comparative Law & Economics provided such a

facet38. Unfortunately, Comparative L&E has (up to now) failed to

establish a comprehensive and coherent methodological framework to

36F. Parisi, V. Fon, The economics of lawmaking, Oxford University Press,

2009.
37 U. A. Mattei, L. Antoniolli, A. Rossato, Op. Cit.
38 R. Michaels, Comparative Law by Numbers? Legal Origins Thesis, Doing
Business Reports, and the Silence of Traditional Comparative Law, 57 American
Journal of Comparative Law 765-795, 2009.

23
validate or falsify the proposed theories39, so it certainly needs further

technical refinement40.

Up to the 1990s, the economic analysis of law had casted its attention on

how norms influence the individual incentives and the behavior of

microeconomic players. In 1997, “Law and Finance”, the well-known

seminal paper written by a group of economists collectively known under

the acronym LLSV41, reversed the perspective by operating comparisons

at a macro level.

LLSV pose that legal rules and regulation differ remarkably among States;

that this difference is due to a great extent to legal origins, the most

important divide being between common law and civil law; that these

differences can be quantified and present a basic historical divergence:

whereas civil law is policy implementing, common law is market

supporting. Since law “matters” for economic and social development and

39See C. Rogers, Gulliver's Troubled Travels, or the Conundrum of Comparative

Law, in 67 George Washington Law Review 149, 1998.
40 M. Reimann, The Progress and Failure of Comparative Law in the Second Half of
the Twentieth Century, The Am. J. of Comp. Law Vol. 50, 4, 2002, pp. 671-
700.
41R. La Porta, F. Lopez-de-Silanes, A. Shleifer, and R. W Vishny, Law and
Finance, 106 Journal of Political Economy 6, 1998, p. 1113-1155.

24
common law is believed to be more efficient in doing so, it follows that

the latter fosters growth.

Needless to be said, this finding light the fuse for a bone-crushing polemic

with civil law scholars42. But if we leave apart the legitimate parochialisms,

it becomes clear that the value of LLSV’s contribution does not rest in its

contingent findings, which are limited in scope to the relationship between

law and finance. Rather, it is remarkable that it employs quantitative

methods to address comparative law problems under a macroeconomic

eye.

Needless to be reported, Law and Finance has not been exempted from a

multitude of technical as well as cultural criticisms (inter alia, overreliance

on ordinary least squares regression43, omitted variable bias44, coding

problems45, concerns on the use of proxies46, overestimation of the

42See N. Garoupa, C. Gómez Ligüerre, The Syndrome of the Efficiency of the

Common Law, Boston University International Law Journal, Vol. 29, No. 2,
2011.
43See K. Pistor, Rethinking the Law and Finance Paradigm, BYU L. Rev., p.
1647, 2009.
44See J.D. Angrist & J.-S. Pischke, The Credibility Revolution in Empirical
Economics: How Better Research Design Is Taking the Con out of Econometrics, 24 J.
Econ. Persp. 3, 2010.
45H. Spamann, Holger, The “antidirector rights index” revisited, 23.2 Rev. of
Fin. Stud., 467-486, 2010.

25
dualism between civil law and common law47, multicollinearity, reductivity

of binary variables, western-centricity of the analysis et cetera).

All these critiques are brilliantly captured in a trenchant paper 48 in which,

using LLSV’s approach, the Author examines the relation between legal

protections and soccer success and finds out that French origin was

significant, thus coming to the conclusion that “perhaps teams from countries

with systems based on the French model […] perform well due to the remaining vestiges

of the Napoleonic Code […]. Or maybe – just maybe – some other forces are at

work.”. Another trivial correlation is then found by whom (in a less satirical

fashion) finds out that French civil law countries deforest less than English

common law ones49. Despite the infamous jokes, Law and Finance

46J. Reitz, Legal Origins, Comparative Law, and Political Economy, American
Journal of Comparative Law, Vol. 57, No. 3, 2009; J.B. Fischman, Op. Cit.
47 In this respect, it is symptomatic that one of the most prominent
Authors of grands systèmes classifications, Hein Kötz, acknowledged that
legal families are nothing more than “a didactical tool”. See H. Kötz,
Abschied von der Rechtskreislehre? [Farewell to the Theory of Legal
Families?], 6 Zeitschrift Für Europasches Privatrecht 493, 1998. Yet, the
divide does remain relevant for civil procedure, which is still different
among these legal families. See R. Michaels, Op. Cit.
48M. West, Legal Determinants of World Cup Success. Michigan Law and
Economics Research Paper No. 02-009, 2002.
49S. Marchand, Legal Origin, Colonial Origins and Deforestation, Economics
Bulletin, vol. 32(2), 2002, pp. 1653-1670.

26
remains a fundamental piece of scholarship as it paved the way for the

development of quantitative macro-comparison.

Another stream of empirical comparative legal studies is represented by

the Doing Business reports issued by the World Bank since 2004, and their

collateral projects50. In particular, the report measures and compare the

ease of doing business in more than 130 countries. The project is led by

Simeon Djankov, a frequent coauthor with LLS, and relies strongly on the

legal origins hypothesis to advocate for reforms in low-performing

Countries. As it has been highlighted, a fundamental difference with the

Legal Origins thesis stands in the fact that while its conclusions are mostly

descriptive, the Doing Business enterprise is instead openly evaluative51.

The report suffered from critiques as well. A first criticism regards its

innate tendency to neglect fairness and justice in favor of deregulation 52.

50 The United States Agency for International Development, the

Canadian International Development Agency, the UK Department for
International Development, name just a few; the Inter-American
Development Bank, European Bank for Reconstruction and
Development, Asian Development Bank, African Development Bank;'
other multilateral financial institutions like the World Bank; United
Nations Development Program. the National Center for State Courts,
the Federal Judicial Center.
51 Ralf Michaels, Op. Cit.
52 As an example, the use until 2008 of EWI, the “employing workers
indicator”, has been very controversial because it captured the ease of
hiring and firing a worker, thus stimulating a race to the bottom.

27
A second criticism regards the insufficient knowledge of the law, especially

law in action.

Third, the Reports have been also charged of a simplistic use of rankings,

which fostered countries to enact useless reforms in order just to climb

positions53.

Fourth, the use of indicators54 and the fact that they are based on perceived

law more than actual law. The scope of the project is also very narrow,

since it only regards the relationship between law and business (which

might not even be considered as belonging to legal analysis) and can be

questioned under political grounds: indeed, it represents a neoliberal

project aimed at supporting laissez faire markets at an institutional level55.

Thus, it suffers of the uniqueness of its premises and of its public policy

suggestions.

53 See Ralf Michaels, Op. Cit.

54 See T. Almeida Cravo, What’s in a label? The aid community’s representations
of success and failure in Mozambique and Guinea-Bissau, Ph.D. thesis, Cambridge
University, 2012; T. Krever, Quantifying Law: Legal Indicator Projects and the
Reproduction of Neoliberal Common Sense, Third World Quarterly, Vol. 34,
2013.
55 T Krever, Op. Cit. On the inherent political connotation of empirical
reaseach, see M. McConville. Research methods for law, Edinburgh University
Press, 2007.

28
As we will appreciate in a while, when we will reconstruct the current

scenario, all of the empirical streams that have been just described are only

tangential to our research. In fact, notwithstanding the shaking of critical

mass which followed these new scholarships, little if no attention has been

devoted in establishing a unitary methodological framework. The idiomatic

elephant is being missed in the room56.

III. FRACTIONS OF A FULL FIGURE

One shall not miss the forest for the trees. The abovementioned projects

are only fractions of a full figure: they belong to the same genus of

empirical analysis of comparative law57, in both its quantitative and

qualitative declinations.

In Kuhnian terms, this three species share the essential characteristics of a

paradigm. First, their achievement was sufficiently unprecedented. Second,

56M. Siems, Comparative Law - Who is the Elephant in the Room? (Book
Review of 'Comparative Law: A Handbook', Örücü and Nelken, eds.),
Edinburgh Law Review, 12, 2008, pp. 334-336.
57Also referred to as being a category of leximetrics, the quantitative
measurement of law. On the point see M. Siems and S. Deakin, Comparative
Law and Finance: Past, Present and Future Research, in Journal of Institutional and
Theoretical Economics (JITE) 166, 2010; R. D. Cooter and T. Ginsburg,
Leximetrics: Why the Same Laws are Longer in Some Countries Than Others, U. Ill.
Law & Econ. Research Paper LE 03-012, 2003; H. Spamann, Large-Sample,
Quantitative Research Designs for Comparative Law?, Am. J. Comp. L. 57.4, 797-
810, 2009.

29
it was sufficiently open ended to leave all sorts of problem open 58. Third,

the overlapping of old methods and new methods denotes a

reconstruction of the field from new fundamentals59.

It follows that the envisaged approach has to be considered evolutionary

more than revolutionary60. It is nothing else than the usual developmental

pattern of science, which blossoms under the auspices of a newly

established analytical framework.

Resistance is structurally positive61: by resisting, the incumbent paradigm

tests the strength of the entrant. At that point, it is all a matter of

breakpoints. As society does, also scholarship advances coffin by coffin.

Hessel Yntema carves this phenomenon in his brilliant prose: “None are

more requited by friendly admonition or polemic animadversion than those who

venture into the lonely and unbeaten paths of science. And criticism is a grateful form of

recognition, for it betrays a degree of apprehension, which promises that even those who

58 T. Kuhn, Op. Cit., p. 10.

59T. Kuhn, Op. Cit., p. 85. In Criticism and the Growth of Knowledge, 1970; I.
Lakatos further highlighted that new ideas are almost always conceived ad-
hoc and then progressively extended.
60 T. Ulen, A Nobel Prize in Legal Science: Theory, Empirical Work, and the
Scientific Method in the Study of Law, in University of Illinois Law Review, No.
4., 2002, p. 886.
61Resisting on the validity of a paradigm by premising the very same
paradigm is never advisable. See T. Kuhn, Op. Cit., p. 94.

30
come to scoff may perhaps remain to pray” 62. Now, one may wonder about the

existence of a real necessity for new analytical tools. And in fact, a well-

known scholar63 unearthed a Nietzschean caveat: the reduction of all

qualities to quantities would be Unsinn, nonsense64.

He is right. Mere reductions are perfectly useless and indeed disruptive:

complementariness shall be the polar star, for we should not forget that

each methodology, be it qualitative or quantitative in its inner nature,

comes out with important limitations65. To the maximum extent possible,

we do not want to stumble over such fallacies. Instead, by helping

ourselves with a twofold unitary method, we want to drive the potential

pitfalls of our research out of its results.

62 E. Yntema, The Rational Basis of Legal Science, 31 Colum. L. Rev. 925,

1931. The author further adds p. 935 that “It is inevitable that a nascent
empirical legal science, now at the threshold of its endeavors, should be put to its
formal justification, before it can be in fact proved. It is altogether advantageous
that it should be so. Necessarily, the event will decide the issue of the scientific
movement in law, but in the meantime differences of opinion can be clarified or
even perhaps shown to be the unfortunate progeny of misunderstanding or verbal
ambiguity”.
63 P. Legrand, Econocentrism, 59 U. Toronto L.J. 215, 2009.
64F. Nietzsche, The Will to Power, W. Kaufmann (ed.), New York: Vintage,
1968 at 304 §564 “Die Reduktion aller Qualitäten auf Quantitäten ist Unsinn”.
65For a first analysis of the need for methodological integration see L.B.
Nielsen, The Need For Multi-Method Approaches In Empirical Legal Research, in
Peter Cane & Herbert M. Kritzer (eds.), The Oxford Handbook of Empirical
Legal Research, Oxford University Press, 2010.

31
Indeed, in announcing that the two methodologies should be intended as

complementary66 we are automatically letting Comparative Law gain

theoretical and practical perspectives from their integration67.

As an eclectic philosopher of science puts it out, “an experience without theory

is just as incomprehensible as is (allegedly) a theory without experience: eliminate part of

the theoretical knowledge of a sensing subject and you have a person who is completely

disoriented and incapable of carrying out the simplest action”68.

Let us make the example of a case study. Taken in itself, and because of

the irrelevance of the sample, it would not be sufficient for proving true

any general hypothesis. However, we can use it to generate a theory which

we can later test with the collection of the appropriate data. Or, vice versa,

66 R. Schlesinger et al., Comparative law: cases, text, materials. Foundation

Press, 1970, p. 40: “thus becomes an important auxiliary method for the social
scientist just as the latter’s findings in turn are used as indispendable tools by those
shaping law and policy in our society”.
67 R. Schlesinger et al., Op. Cit., p. 39: “The reformer who strives to improve the
law may resort to social science methods in order to gather empirical data demonstrating
the unsatisfactory effects of an existing rule. But when he seeks to explore the probable
effects of proposed alternative solutions, the methods of social science have to be
supplemented by those of comparative law.”. See also H. Spamann, Op. Cit.; J.
Reitz, Legal Origins, Comparative Law, and Political Economy, Am. J. of Comp.
L., Vol. 57, No. 3, 2009; T. Eisenberg, The Origins, Nature, and Promise of
Empirical Legal Studies and a Response to Concerns, Cornell Legal Studies
Research Paper, 2010.
68P.K. Feyerabend, Against Method: Outline of an Anarchistic Theory of
Knowledge, Verso Edition, London, 1978, p. 137.

32
we can start from the aggregate analysis of a given feature, elaborate a

theory, and then check the robustness of our conjecture. We can design

quantitative work as preceded by qualitative exploratory work, do the

contrary69, or even use mixed structures (qualitative – quantitative –

qualitative; quantitative – qualitative – quantitative), but what really matters

is that we work on two levels of an unitary analysis which allows us to

gather and process large data sets by quantitative means and to gain in-

depth narrative from qualitative analysis70, adopting the different

methodologies to the different goals pursued by our analysis.

A scientific inquiry into comparative law can be indicted under many

different grounds. First of all, it can be argued that legal phenomena are

not susceptible of exact measurement. Law - one might argue - consists of

an inherently normative, ideal world that has no correspondence with

reality, while empirical research is instead inherently descriptive71, and intuition

alone cannot suffice to relate observable data to normative claims.

Actually, this is the reason why legal scholarship needs to build the

69 L.B. Nielsen, Op. Cit., at 955.

70See J.W. Cioffi, Legal Regimes and Political Particularism: An Assessment of the
Legal Families Theory from the Perspectives of Comparative Law and Political
Economy, Byu L. Rev. 1501, 2009, especially pp. 1532 and 1533.
71 J. B. Fischman, Op. Cit.

33
conceptual framework that can bridge the gap between ‘is’ and ‘ought.’

Indeed, developing such framework will require a sustained agenda

that integrates empirical methodologies with legal theory72, in order to let

key assumptions be identified and transformed into hypotheses amenable

to the rigors of empirical testing73, which can in turn generate effective

policy recommendations. In effect, even if data themselves have no

intrinsic normative significance, every respectable empirical study builds

upon normative premises. It is just that they are formulated as measures74

and not as propositions. Holding data constant, the more credible the

measure, the more effective the policies75.

Obviously, “justifying a metric requires two steps. First, one needs a theory of

the good. […] Second, one needs to relate observable phenomena to the measure

of goodness. When good or bad outcomes are directly measurable—such as when

the outcomes of a medical trial are “survival” and “death”—the results will be self-

interpreting and no deeper theory is needed”.

72 J. B. Fischman, Op. Cit.

73M. Heise, The Past, Present, and Future of Empirical Legal Scholarship: Judicial
Decision Making and the New Empiricism, U. Ill. L. Rev., 2002, p. 827.
74 J. B. Fischman, Op. Cit.
75 J. B. Fischman, Op. Cit.

34
Empirical analysis can therefore build a scientific infrastructure of

comparative legal studies by notably reducing the innate subjectivity of law

so to let sound theories emerge from constant testing against experience76,

in order to reveal features of law that are obscure to the common sense77.

Another possible criticism is that law is inherently not predictable78. This

myth is as old as the attribution of thunderstorms to the wrath of God:

legal outcomes have become always more and more predictable, on the

one side because of the scaffolding provided by doctrine, precedents and

praxis, and on the other side because of the emergence of legal certainty as

a human right. It is all a matter of investigating and properly identifying

the hidden regularities of legal doctrine79.

Also, acquiring fluency in empirical analysis allows the interpreter to

investigate her hypotheses via an “endless process of testing and retesting80, rather

than confining it in the hyperuranium of her mind. This implies that she

76 M. A. Glendon et al., Comparative Legal Traditions, 2d rev. ed., 1994.

77D. Galligan, Legal Theory and Empirical Research in Oxford Handbook Of
Empirical Legal Studies, P. Cane, H. Kritzer (eds.), Oxford University Press,
2010;
78 “If it be not so, are not lawyers consummate charlatans!”. H. Yntema, Legal
Science and Reform, 34 Columbia Law Review 2, 1934, p. 209.
79H. Dagan, Reconstructing American Legal Realism & Rethinking Private Law
Theory, Oxford University Press, 2013, p. 45.
80 B. Cardozo, The nature of the judicial process, 1921, p. 179.

35
can design legal questions differently, so to obtain different answers, that

would have never been captured otherwise. She can unveil aspects that

were before diaphanous to a traditional analysis.

In addition, being by definition universally testable, the empirical approach

speaks the lingua franca needed to elucidate the quandaries of the

polycontextual law81 originating from a legal world reshaped by

globalization. A last objection might derive from an innate skepticism

towards the use of unconventional tools which are alien to the legal

academia. Bearing well in mind that “technique is noticed most markedly in the

case of those who have not mastered it”82, scholars shall understand that toolkits

belonging to different disciplines are not in contrast with each other but

shall be carefully and appropriately handled, only after intensive training

and proper digestion. Indeed, the very same chisel can make an artist or a

butcher. Given that the scholar learns how to use her knives, the problem

becomes cultural more than technical.

81V. Grosswald Curran, Comparative Law and the Legal Origins Thesis: '[N] On
Scholae Sed Vitae Discimus', American Journal of Comparative Law, Vol. 57,
2009.
82L. Trotsky, Literature and Revolution, 1923, ed. William Keach, Chicago
2005, p. 168.

36
 IV. CONCLUSION: PAST IS PROLOGUE

In sum, we have highlighted the structural stalemate experienced by

comparative legal studies, heightened by the progressive saturation of

traditional scholarship originating from the loop of taxonomies occurred

in connection with the Grands Systèmes of the last Century.

As a result, more and more legal scholars have resorted to germane

sciences. At the same time, scholars from other vocational fields have

joined the game carrying their toolboxes and techniques. Surprisingly,

notwithstanding the consequential shaking of critical mass, comparative

scholars has up to now devoted little if no attention to the establishment

of an unitary methodological framework. In fact, one shall not miss the big

picture: all these of these streams belong to the same genus of empirical

measurement of comparative law, articulated in both its quantitative and

qualitative components. The overlapping of old and new methods also

denotes a reconstruction of the field from new fundamentals: it is nothing

else than the usual developmental pattern of science, which blossoms

under the auspices of a newly established analytical structure. This suggests

that it is still possible to produce cutting-edge scholarship by exploiting the

virtuous spiral triggered by such new research streams, and that, even if a

universal formula does not - unsurprisingly - exist, opportunities to

37
produce valuable works are abundant to those who want to refute

methodological orthodoxy. And what is past becomes prologue83.

83 Borrowed from W. Shakespeare, The Tempest, Act 2, Scene I.

38
 CHAPTER II

ON METHODS:
THE EMPIRICAL COMPARATIVE
SCHOLAR AS JANUS BIFRONS

SUMMARY: I. What counts as “empirical”? - II. Qualitative methods - III.

Quantitative methods - IV. Triangulation, methods mixing and
interdisciplinary cherry-picking. - V. Janus Bifrons.

I. INTRODUCTION: WHAT COUNTS AS “EMPIRICAL”?

In V. Palmer’s worlds “method is now identified by the ‘techniques’ by which

comparisons are carried out”84. Before proceeding further, we thus need to

define the object of our study, id est what counts as empirical, and how do

we contextualize it in the comparative legal setting85.

84V. Palmer, From Lerotholi to Lando: Some Examples of Comparative Law

Methodology, in 53 Am. J. of Comp. Law, 262, 2005.
85For a general discussion of the topics which will come to relevance in
this chapter, see: J. Angrist, J.-S. Pischke, Mastering Metrics: The Path from
Cause to Effect, Princeton University Press, 2014; Id., The Credibility
Revolution in Empirical Economics: How Better Research Design Is Taking the Con
out of Econometrics, 24 J. Econ. Persp. 3, 2010; M. Armer, A. Grimshaw
(eds.), Comparative social research: methodological problems and strategies, Wiley,
1973; H. Brady, D. Collier (eds.), Rethinking social inquiry: diverse tools,
shared standards, 2010; H. Brady, Do Two Research Cultures Imply Two Scientific
Paradigms?, 46.2 Comp. Pol. Stud. 252-265, 2013; A. Bryman, Social research
methods, Oxford University Press, 2012; H. Chodosh, Comparing
Comparisons: In Search of Methodology, 84 Iowa L. Rev. 1025, 1998-1999; W.

39
Cook, Scientific Method and the Law, 13 A.B.A. J. 303, 1927; J. Creswell,
Research design: Qualitative and quantitative research approaches, 1994; Id., Research
design: Qualitative, quantitative, and mixed methods approaches, Sage publications,
2013; L. Epstein, G. King, The rules of inference, 69 U. Chi. L. Rev. 1,
2002; Id., Building an Infrastructure for Empirical Research in the Law, 53 J. Legal
Educ. 311, 2003; L. Epstein, A. Martin, An introduction to empirical legal
research, Oxford University Press, 2014; W. Firestone, Meaning in method: The
rhetoric of quantitative and qualitative research, 16.7 Educational researcher 16-
21, 1987; D. Galligan, Legal Theory and Empirical Research in Oxford Handbook
Of Empirical Legal Studies, P. Cane, H. Kritzer (eds.), Oxford University
Press, 2010; B. Geddes, How the Cases You Choose Affect the Answers You Get:
Selection Bias in Comparative Politics, 2 Pol. Analysis 131, 1990; J. Gerring,
How good is good enough? A multidimensional, best-possible standard for research
design, 64.3 Political Research Quarterly 625-636, 2011; J. Getman,
Contributions of Empirical Data to Legal Research, 35 J. Legal Educ. 489, 1985;
G. Goertz, J. Mahoney, A tale of two cultures: Qualitative and quantitative
research in the social sciences, Princeton University Press, 2012; J. Goldsmith,
A. Vermeule, Empirical methodology and legal scholarship, Un. Chic. L. Rev.
153-167, 2002; J. Greene, Engaging critical issues in social inquiry by mixing
methods, 56.6 American Behavioral Scientist 755-773, 2012; R. Hastie, The
Challenge to Produce Useful “Legal Numbers”, 8.1 Journal of Empirical Legal
Studies 6-20, 2011; D. Ho, D. Rubin, Credible causal inference for empirical legal
studies, 7 Annual Review of Law and Social Science 17-40, 2011; K. Howe,
M. Eisenhart, Standards for qualitative (and quantitative) research: a prolegomenon,
19.4 Educational researcher 2-9, 1990; T. Jick, Mixing qualitative and
quantitative methods: Triangulation in action, Administrative Science Quarterly
602-611, 1979; G. King, R. Keohane, S. Verba, Designing social inquiry:
Scientific inference in qualitative research, Princeton University Press, 1994; R.
Lawless, J. Robbennolt, T. Ulen, Empirical methods in law, Aspen Publishers,
2010; S. Mathison, Sandra, Why triangulate?, 17.2 Educational researcher 13-
17, 1988; J. Maxwell, Using numbers in qualitative research, 16.6 Qualitative
Inquiry 475-482, 2010; M. Mcconville, Development of empirical techniques and
theory in research methods for law, in M. McConville, W Chui (eds.), Research
methods for law, Edinburgh University Press, 2010; L. Nielsen, The Need
For Multi-Method Approaches In Empirical Legal Research, in Peter Cane &
Herbert M. Kritzer (eds.), The Oxford Handbook of Empirical Legal Research,
Oxford University Press, 2010; C. Ragin, The comparative method: Moving
beyond qualitative and quantitative strategies, Univ. of California Press, 2014; J.
Robbennolt, Evaluating Empirical Research Methods: Using Empirical Research in
Law and Policy, 81 Neb. L. Rev. 777, 2003; H. Spamann, Large-Sample,

40
We have already briefly touched upon the issue in the previous chapter,

reporting that the empiricism is based upon a systematic investigation of

facts by either a quantitative or a qualitative method, or both.

Empirical analysis does not come as a novelty for the legal academia86, nor

it does so for comparative legal studies, which imply field observations at

an ontological level.

If it is true - as it is, indeed - that contemporary legal scholars cannot

remain confined in an ideal ivory tower, but have instead to go outside and

look at how the law in action performs at a given point in time and space,

it is even more true that this attitude is even more pronounced in

comparative legal scholars, who have always recognized that their

enterprise requires them to backpack their own domestic knowledge and

venture into the exploration of new lands, languages and times87, with at

least the same strive for curiosity and understanding which characterizes

the mythical protagonist of the Flammarion engraving.

Quantitative Research Designs for Comparative Law?, 57.4 Am. J. Comp. L. 797-
810, 2009; Id., Empirical comparative law, 11 Annual Review of Law and
Social Science, forthcoming 2015.
86 In two distinguished scholar’s words, “[a]lthough the term “empirical

research” has become commonplace in legal scholarship over the past two decades, law
professors have in fact been conducting research that is empirical—that is, learning
about the world using quantitative data or qualitative information—for almost as long
as they have been conducting research.” L. Epstein, G. King, The rules of inference,
69 U. Chi. L. Rev. 1, 2002.

87 The role of diachrony is to be briefly discussed in the following chapter.

41
Thus, it is not surprising to recognize that comparative legal scholars are

the natural anthropologists of law, as their afflatus towards comparison

inevitably requires them to look out of their own world, manifesting an

ethnographic attitude which is empirical in nature.

This being premised, it is evident that the comparatists’ natural tendency

to refer to what they observe even before their theoretical ponderings

makes them more prone to empirical analysis than what we had originally

believed.

Notwithstanding the above, maybe also because of the relative youth of

comparative law as an autonomous subject, up to now empiricism has not

been one of the main features of their theoretical framework. This

separation is made evident even by semantic questions.

Indeed, first of all, we must relocate ourselves out of a linguistic backwash.

In fact, empirical analysis has often too misleadingly being identified as a

mere investigation of properties which are quantitative in nature (i.e. refer

to quantifiable processes of measurement), as often plainly contrasted to

qualitative properties (which are mainly built upon logic). However, this

reductionism proves immediately to be wrong88: an authentic empirical

approach shall be strongly grounded in both of the cultures. And this

88 Nonetheless, great part of empirical comparative legal studies is

quantitative in nature.

42
constitutes the main reason why, despite the quantitative culture being

often the one most referred to when commonly speaking about

empiricism, in order to discern between the two approaches, the use of

numbers is certainly not a good proxy89.

To make it clear, qualitative studies often contain references to numbers

and measures90 inasmuch as quantitative studies often require deeply

grounded logical premises.

Sometimes, indeed, qualitative studies have to rely on what has been

termed as “quasi statistical findings”, i.e. terms indicating the recurrence of a

given event. Therefore, the conclusions built on such tools are nothing

more than “hidden inferences”, obtained via rigorous logical processes.

Disentangling the two is therefore an extremely grievous enterprise. For

this reason, rather than of “paradigms” one shall investigate the two aspects

referring to them as “research designs”, both built upon the formulation of

an hypothesis, subsequent observations and the final statement of a certain

claim.

89 See J. Maxwell, Using numbers in qualitative research, 16.6 Qualitative

Inquiry 475-482, 2010 and R. Lawless, J. Robbennolt, T. Ulen, Empirical
methods in law, Aspen Publishers, 2010.
90 This view is challenged by H. Becker, Field work evidence, in H. Becker,
Sociological work: Method and substance, New Brunswick, 1970. The
Author argues that even qualitative researchers often adopts quantitative
claims in a verbal fashion.

43
Unsurprisingly, recent years have seen a dramatic increase in the attention

paid by social sciences to research designs91. Insofar, however, this

renewed interest has been neglected by comparative law, which has rather

focused on analyzing the data gathered from grands systèmes.

The following pages will therefore to provide a general overview in order

to lay out the methodological foundations of our analysis.

91 See J. Gerring, How good is good enough? A multidimensional, best-possible

standard for research design, 64.3 Political Research Quarterly 625-636, 2011
and L. Epstein, G. King, op. cit.: “The tradition of including some articles devoted
exclusively to the methodology of empirical analysis—so well represented in journals in
traditional academic fields—is virtually nonexistent in the nation’s law reviews. As a
result, readers learn considerably less accurate information about the empirical world
than the studies’ stridently stated, but overly confident, conclusions suggest.”.
Another (long) quote from the same Authors comes very handy: “But
empirical research, as natural and social scientists recognize, is far broader than
these associations suggest. The word “empirical” denotes evidence about the world
based on observation or experience. That evidence can be numerical (quantitative)
or nonnumerical (qualitative); neither is any more “empirical” than the other. What
makes research empirical is that it is based on observations of the At the same time, the
current state of empirical legal scholarship is deeply flawed. […] the articles devoted to
methodology in these disciplines—is virtually nonexistent in the nation’s law
reviews. a whole field cannot count on others with differing goals and perspectives
to solve all of the problems that law professors may face. Quite the opposite:
scholars must have the flexibility of mind to overturn old ways of looking at the
world, to ask new questions, to revise their blueprints as necessary, and to collect more
(or different) data than they might have intended. It may be that, after amassing the
evidence for which the design calls, the scholar finds an imperfect fit among it, the
main re-search questions, and the theory. Rather than erasing months or even years of
work, the investigator certainly should return to the drawing board, design more
appropriate procedures, or even recast the original research question. Indeed, often when
researchers find that data turn out to be inconsistent with a hypothesis, they immediately
see a new hypothesis that apparently explains the otherwise anomalous empirical
results.”.

44
In effect, pinpointing two interesting quotes can give us some starting

coordinates. According to Donald Rubin, “design trumps analysis”92 but, as

Steve Jobs rebates, “design is not about how things look, but it is about how things

work”93.

So we end up waking in the consciousness that there are no paradigms at

war, but that different methodologies are virtually construed on different

research designs, which are selected depending on the degree of

confidence of their users on that methodology, and may well serve to

diverse functions94. The field of our game is thus represented by the

methodological fields: our green pastures.

In the preceding lines we have briefly highlighted that there is a factual

convergence between the two designs. We shall now ask ourselves how to

distinguish the two, also in order to highlight and contrast the respective

main features, with a particular eye for what becomes relevant for

comparative legal scholars.

In primis, we can ask ourselves whether the “explanatory versus descriptive”

dualism can be a good theoretical divide. And we shall almost immediately

92
D. Rubin, For objective causal inference, design trumps analysis, Annals of
Applied Statistics, 808-840, 2008.
93
Watch https://www.youtube.com/watch?v=sPfJQmpg5zk.
94
For a discussion of which, see infra.

45
say that no, this would not be a good criterion: empirical comparative

research can well be either descriptive or inferential, or both. In particular,

descriptive research may provide us all the information needed in order to

examine the object(s) of our comparison, and inferential research can

show us the causal relationships behind a given problem.

Then, we can ask ourselves whether dividing the two methods in a-

theoretical (quantitative) versus theoretical (qualitative) analysis can be

good divide. The answer is already implied in our previous analysis. That

would not be the case. The empirical paradigm, which relies on both the

designs, encompasses theories as well as methods95. Any numerical

analysis needs a theoretical underpinning, and any theory needs at least

some data in order to be falsified.

We can now ask ourselves whether a more factual element like the size of

the sample can be useful in order to discern between the two. That is again

not the case. Indeed, in comparative studies (albeit this may seem

counterintuitive) the size of the sample is always destined to remain

relatively small, and reliable general patterns may not be evident despite

measuring almost any of the available units of observation. This is the

95L. Epstein, A. Martin, An introduction to empirical legal research, Oxford

University Press, 2014, p. 1.

46
reason why, in order to be able to establish robust causal relationships

advanced tools are almost always necessary96.

So, in the end, what is the empirical comparative studies’ main feature?

The answer is given to us by Arthur Conan Doyle in The Adventure of the

Copper Beeches: “Data! Data! Data! I can’t make bricks without clay!”.

Data are thus the distinctive feature of empirical comparative law, as well

as the basis upon which the design of a given research is based, both ex

ante (depending on their availability) and ex post (as of their results). Data

indeed represents both the testing tool for theoretical hypotheses and their

final evidence.

One common belief for not establishing a sound empirical methodology

of comparative legal studies is that they would require data which are not

available or are qualitatively too weak97. This is another false myth which

shall be immediately uncovered.

Plainly put: the systemic lack of data for comparative analysis is a false

problem. First, all data accumulated in the past with the extensive

researches on grands systèmes are available and can be of great help, also in a

diachronic perspective. Second, we now have all the technical tools and

96 M. Siems, Comparative Law, Cambridge University Press, 2014

97 Also in regard to weak data, see infra.

47
the information flows needed to collect massive quantities of data (the so

called and overhyped “big data”). Third, nowadays data are often available

for free, and even in case they are not, they can be traded, as a robust

market for data98 exists.

Notwithstanding, it can be conceded that sometimes data might not be

available for many units of observation (id est countries, regions or topics)

and this is certainly an issue to be taken into due account99.

Indeed, the major danger is that the availability of data “determines what we

as scholars can actually study”100, and this is certainly risky101.

Having briefly outlined our general framework, we shall now review the

features, pitfalls and potentials of the two methods for the study of

comparative law. We will first address the qualitative method because as it

is the most traditional for legal analysis, and then the quantitative, which is

considered to be more progressive.

98
E. Warren, The Market for Data: The Changing Role of Social Sciences in
Shaping the Law, 1 Wisc. Law Rev., 2002, p. 3.
99
H. Spamann, Empirical comparative law, 11 Annual Review of Law and
Social Science, forthcoming 2015, p. 2.
100
P. Lepaulle, The Function of Comparative Law, 35 Harvard Law Review
838, 1921-1922.
101
Also on this topic, see infra.

48
We will then see how triangulation102, methods mixing and

interdisciplinary cherry-picking can play a key role in building an integrated

infrastructure of empirical comparative studies.

The main claim of this chapter is that comparative scholar will find its long

craved methodology by identifying itself in a true Janus Bifrons, the two-

headed roman god which makes of unity within separation its strength.

Indeed, the multilayered complementariness of the qualitative and

quantitative capita will be able to generate a scholarship which gains

theoretical perspective via integrating itself with observational evidence so

to reinforce the idea of comparative law as a science103.

This approach, however, is not called for in order to replace “traditional”

comparative law (which as a subject stands apart from the methods that

we use for assessing it) but rather to tackle and strengthen it on a different

methodological premise.

In this view, the use of both methods, in particular the less travelled

quantitative one, shall be not be intended as alternative to a traditional

102 The term “triangulation” designates the combination of quantitative

and qualitative methodologies used to supplement, enhance and test the
validity of the results in the study of the same phenomenon, moving from
the assumption that any inherent bias would be canceled out. For an in-
depth analysis see N. Denzin, Triangulation 2.0, 6.2 Journal of Mixed
Methods Research 80-88, 2012.

H. Chodosh, Comparing comparisons: in search of methodology, 84 Iowa L.

103

Rev. 1025, 1998-1999.

49
study of comparative law, but rather as one of its extensions. We are about

to discover why and how.

II. QUALITATIVE METHODS

As anticipated, this paragraph will briefly review and highlight some of the

main features, potentials and pitfalls of qualitative studies, drawing a

parallelism with quantitative whenever be useful.

The key point and main contention of this paragraph is that the inner

nature of qualitative analysis in comparative studies is their ability to

provide a foundation for an integrated analysis.

As anticipated, qualitative analysis is the analysis typically performed by

“traditional” comparative legal scholars. Therefore, in our investigation, we

will discuss it first.

The first self-evident feature of what goes into the hotchpotch of

qualitative analysis, is that it is mainly built on logic and verbal reasoning.

This feature gives to the researcher the opportunity to indulge in

dialogical, historical and sociological digressions. Notwithstanding what

above, especially in recent times, qualitative research design has also been

built upon numerical104 premises105. Realism, especially at the end of the

104
J. Maxwell, op. cit..

50
last Century, supported the idea that the use of quantitative evidence in

comparative works could have been the only way for building an objective,

perfectly measurable and aseptic scholarship, able to provide a sound

explanation for every iota of the legal world. Something a little bit too

optimistic, maybe.

In contrast, traditional comparative scholars found that their reasoning

was perfectly grounded on scientific premises and saw no need for

complementing their findings with quantitative alchemy.

In addition, they often transferred their own ideologies in their writings,

making it carefully to avoid the employment of quantitative tool because

(generally) less maneuverable106.

On technical grounds, reliable and complete datasets were also very

difficult to be obtained. In more recent times, however, there has been an

attempt by some traditional researchers to make qualitative research

105
Nonetheless, this methodological stream has always been considered
(at least) controversial by the mainstream doctrine.
106
On the other side, we shall not forget that “When qualitative researchers do
publish politically uncomfortable results, a common response is to argue that because
these results are not numerical, they are, therefore, “anecdotal,” and can be dismissed”.
J. Maxwell, op. cit., p. 475.

51
scientific by imposing themselves measurements and benchmarks107, thus

supporting the inclusion of numbers their research.

The initial mistrust can be contrasted with another consideration: it is

likewise shocking that for such a long time it has been believed that a

single case, albeit representative of a certain tendency, could rise to a

generalizable conclusion. Mere speculations based on single laws or

judgments, which are deprived of any empirical evidence, frequency or

pattern serve indeed almost to nothing more than filling academic reviews

with wasted ink.

In addition, it can be said that comparing all the countries on a qualitative

basis might be a daunting enterprise as much as trying to operate

quantitatively even in a world where the players of the game are a finite

and relatively small number, since data availability might be (and often is) a

problem for some of them108.

Therefore, the “N-players” problem plays a fundamental role in the

research design to be selected by the researcher.

G. King, R. Keohane, S. Verba, Designing social inquiry: Scientific inference in

107

qualitative research, Princeton University Press, 1994.

108
Certain states might have disappeared, other might be in transition,
other might not exert an effective control on their territories and
population.

52
On the other side, however daunting the task, the existence of a relatively

small number of players advantages an observational study.

In fact, the ideal of empiricism in comparative studies would be to possess

detailed observations on all the subjects of a given study in order to be

able to proceed to an atomistic comparison. However, this level is credibly

not attainable. And indeed, we have anticipated that it is not the size of the

sample which constitutes the line of demarcation between empirical and

not empirical scholarship.

From these premises, it can already be inferred that a comparative

scholarship characterized by qualitative research only would be severely

limited: the scholar might only conduct few in-depth analyses and might

miss the big picture, thus ending up not being able to provide a sound

general explanation or, worst of the cases, grounding his findings on the

explanation given to individual cases, hence assigning a particular weight

to outlier observations.

On the other side, the analysis of single countries can provide

counterexamples of what resembles a necessary causal relationship109.

This being sad, it appears that the main use of the qualitative tradition in

comparative legal studies is mostly suited for case studies rather than for

109H. Spamann, Empirical comparative law, 11 Annual Review of Law and

Social Science, forthcoming 2015.

53
cross-case analysis, which comes instead of help when analyzing central

tendencies110.

Case studies have indeed advantages that cannot be easily replicated when

large samples are used, since the former allow for a better degree of

knowledge regarding context-specific attributes111 that may be less relevant

(or completely irrelevant) in the latter. Moreover, they are less dependent

on the availability of data.

From the perspective of comparative law methodology case studies also

have the distinct advantage of accounting for the fact that different legal

systems may address the same problem in different ways: “by simply asking

whether a particular legal provision exists or does not exist in another legal system, large

110 For a general discussion, see once again G. Goertz, J. Mahoney, A tale
of two cultures: Qualitative and quantitative research in the social sciences, Princeton
University Press, 2012.
111
According to H. Chodosh, Comparing Comparisons: In Search of
Methodology, 84 Iowa L. Rev. 1025, 1998-1999, “Many disagreements can
emerge from the choice of comparative variables. Any two or more phenomena may
have a multiplicity of potentially comparable attributes. It may be neither desirable
nor practical to compare all of these attributes simultaneously, if at all. Therefore,
it is reasonable that comparisons are commonly more selective than configurative.
Comparisons tend to focus on a particular subset of variables, while ignoring
others. Notwithstanding their significance, these comparative variable choices are
infrequently explained or justified”.

54
n-studies commits what is regarded as a cardinal error in comparative institutional

analysis: they assume that there is only a single solution to a problem”112.

Indeed, the same question might be solved in different identically-

functional ways by every single legal system.

Case studies also do not require the researcher to identify a single

parameter, variable or benchmark for all the objects of its study countries

(such as time, languages, spaces), yet keeping a certain degree of

confidence in general comparability.

This constitutes also a challenge, since “the findings from qualitative work tend

to be less generalizable because they are context specific”113 and may detect “causal

and other explanatory mechanisms that statistical correlation cannot capture”114.

Without such mechanisms, “anecdotal evidence supplies a risky foundation upon

which to form generalizations”115.

K. Pistor, Rethinking the Law and Finance Paradigm, BYU L. Rev., 1647,
112

2009, p. 1664.
113 G. Shaffer, T. Ginsburg, The Empirical Turn in International Legal
Scholarship, 106 Am. J. of Int’l Law 1, 2012.

J. Goldsmith, A. Vermeule, Empirical methodology and legal scholarship, Un.

114

Chic. L. Rev. 153-167, 2002.

115 M. Heise, The Importance of Being Empirical, 26 Pepp. L. Rev. 807, 1998.

55
The last disadvantage of qualitative studies over quantitative is that they

cannot be replicated116 and therefore checked.

Concluding on qualitative analysis, we must register that this method

cannot stand per se, in se and ex se, but must be used as a foundation for

quantitative analysis, which – as we will see in a moment – is currently

benefiting of all the technical refinements and funding opportunities

connected with data gathering and analysis.

Qualitative work is thus important for generating theories which can be

tested on quantitative grounds, without losing of sight the dynamics of

social contexts. However, as we will see thereafter, triangulation, methods

mixing and interdisciplinary cherry picking will enable the researcher to

“compare different kinds of data from different sources to see whether they

corroborate each other”117.

T. Jick, Mixing qualitative and quantitative methods: Triangulation in action,

116

Administrative Science Quarterly 602-611, 1979.

117
G. Shaffer, T. Ginsburg, op. cit..

56
 III. QUANTITATIVE METHODS

A slightly longer passage is needed in order to address the issues related to

quantitative analysis. That “legal systems depend heavily on useful numbers and

calculations”118, does not come as a surprise.

Legal systems are indeed filled with quantification (damages, penalties,

years of conviction). Therefore the reliance of legal systems upon

measurement is self-evident. Quantitative legal analysis comes out in

various flavors, some harder (causal inference), some lighter (descriptive

statistics), and quantitative methods119 such as statistic and econometrics

characterizes themselves by definition as tools of cross-case analysis,

juxtaposed to within-case analysis, which – as we have seen above -

involves the analysis of individual observations120.

However, a fundamental caveat towards quantitative analysis is

immediately necessary. We are prone to believe that empirical scholarship

can more easily discern the normative from the descriptive and yet

R. Hastie, The Challenge to Produce Useful “Legal Numbers”, 8.1 Journal of

118

Empirical Legal Studies 6-20, 2011.

For a review of the features of quantitative methods, once again see G.

119

Goertz, J. Mahoney, op. cit..

120
Quantitative approaches will therefore (generally) be a little more
suitable for addressing macro-questions.

57
maintain its neutrality. However, in the own fortunate words of one the

forefathers of Law and Economics , one can “torture the data, and it will

confess to anything”121.

This is true under many aspects. First of all, the aspect of measurement

(i.e. the comparison of a given object with some predetermined standard).

One first difficulty stems from the fact that we have to learn how to

measure and then fix an appropriate unit of measurement122, thereafter

conceptualizing our measure so that it can capture the underlying data.

Indeed, the same measure which we take as a benchmark, indicator123 or

parameter means nothing unless we assign it a certain value. Before that,

“everything about the object of study is lost except the dimension or dimensions

being measured”124.

121
Ronald Coase, as cited in G. Tullock, A Comment on Daniel Klein's 'A Plea
to Economists Who Favor Liberty', Eastern Economic Journal, 2001.
122 “Although numerical summaries can be convenient and concise, and are by
definition precise, measurement need not involve numbers- as is often the case in
qualitative research. Categorizations, such as "tall," "medium," and "short," or
"Catholic," "Protestant," and "Jewish," are reasonable measures that can be very
useful, assuming researchers sufficiently define the standard for measurement so
that they (or others) can unambiguously apply it” L. Epstein, G. King, op. cit..

Id est, quantitative measures of the performance of legal systems K.

123

Davis, Legal indicators: the power of quantitative measures of law, 10 Annual

Review of Law and Social Science 37-52, 2014.
124
L. Epstein, A. Martin, op. cit..

58
Assigning values determines however that we abstract to a certain extent.

When we do it, however, it becomes unavoidable our research question

becomes “lightly or heavily scented with the values of those whose hands who are on

the switch"125. How can we then be sure that such measure stays reliable and

valid126? The concepts of reliability, equitability and predictability in

relation to “legal numbers” can be tricky, and has up to now being an

untraveled venture.

This is really unfortunate, since establishing an appropriate measure entails

careful measurement procedures and attention on the quality of the

produced numbers.127

Therefore, the problem stands also in bringing the right metrics to the law:

the better the measure, the stronger the conclusions which we can infer.

The difficulty for comparative scholars in designing and collecting

consistent measurements has been well recognized because of the earlier

failures in collecting and coding the data.

L. Friedman, The Law and Society Movement Author, 38 Stan. Law

125

Rev. 3, 1986, p 763.

126
For a general discussion on reliability and validity, see L. Epstein, G.
King, op. cit.

127 R. Hastie, op. cit..

59
In particular, coding is the process of transforming the attributes and

properties of observations into standardized, analyzable forms able to

achieve “a close fit between the facts and the concept (validity) in a reproducible,

consistent manner (reliability)128. Of course, there are different methods for

sampling and coding data. This gives a hint of the fact that coding law is

always bound to a certain degree of subjectivity, in particular when it

involves different legal systems as the comparative scholarship.

This construction not shared by every author. Some argue that another

caveat in the use of quantitative methods is related to hidden biases.129

Researchers may well (consciously or unconsciously) look for the

observations that best fit their theories, thus creating a procrustean bed’s

problem.

Another serious concern relates to weak data, id est data which encourage

weak or flawed inferences, that are statistically insignificant, or that are of

extremely limited value and may be therefore misused. And this raises a

second-level question: what if weak data are the only one which can be

128 H. Spamann, op. cit..

129 “In addition, qualitative work may be viewed as untrustworthy because it
reflects the normative predispositions of the observer or those the researcher
interviews”. G. Shaffer, T. Ginsburg, op. cit.. See also B. Geddes, How the
Cases You Choose Affect the Answers You Get: Selection Bias in Comparative
Politics, 2 Pol. Analysis 131, 1990.

60
extrapolated from the available resources? Some argue that such data shall

be nonetheless reported, because should they prove consistent with other

more grounded data, obtaining a double proof might always be useful130.

Another tricky question is, as an example, whether optional rules shall be

included in the analysis or not (thus counting only default and

mandatory rules)131.

Another danger is that of reducing potential evidence to the amount of

collected evidence. This aspect may is certainly critical for drawing the

correct conclusions.

Finally, a last caveat shall be raised against the rhetorical use of numbers,

directed to making a claim appear more rigorous than it actually is. This

may well happen also when we restrict our analysis to a given point in

time, which may only reveal short-term trends.

130 “Sometimes reporting weak or preliminary data can spur further, more solid
research. This may outweigh concerns about potential misunderstandings of the
data. And sometimes weak data is just one data point among many. Then, the risk
that the data will be misused is smaller”, in D. Schwartz, Should Empirical Legal
Scholars Have Special Responsibilities?, http://concurringopinions.com, May 8,
2013.
131On this specific question, one can argue that optional rules shall be
taken into account when analyzing a given system because they are
available to the “consumer”, id est the users.

61
Coming to the advantages of quantitative methods, we can immediately

report that these are able to process large amounts of data, immediately

“narrowing down the set of plausible theories”132.

They can also be aggregated and disaggregated133 at the different levels

needed (as an example, at a micro or macro level134). Aggregated data will

therefore identify hidden patterns135 and suggest generalizable

conclusions, whereas disaggregated data may serve for subgroups of

observations. Data can be engineered both for comparing the policies of a

number of countries, and for measuring the reaction of economic agents

to exogenous changes in legislation136.

Additionally, numbers typically add precision to statements137 testing

hypotheses against large datasets with refined techniques which may be

132 H. Spamann, op. cit..

133 However, this is not always possible.

Analysis at macro or micro level shall not be confused with the analysis
134

public or private comparative law.

135
W. Firestone, Meaning in method: The rhetoric of quantitative and qualitative
research, 16.7 Educational researcher 16-21, 1987.

B. Luppi, F. Parisi, Quantitative Methods in Comparative Law, in Minnesota

136

Legal Studies Research Paper, 2012.

137
“However, they do this at the cost of stripping away everything but the quantitative
information and are thus necessarily complementary to qualitative information rather
than substituting for it”, see J. Maxwell, op. cit..

62
unavoidable in order to establish robust causal relationships138. All in all,

“numbers provide less shelter than words”139. What is more, differently from

data obtained via qualitative methods, quantitative data present the

advantage of being replicable140.

Lastly, they have an easier stand for communicability, as they are a

standardized form of evidence.

IV. TRIANGULATION, METHODS MIXING AND

INTERDISCIPLINARY CHERRY-PICKING.

In our review of the features, pitfalls and potentials of qualitative and

quantitative methods, we have highlighted that much of the analysis to be

conducted depends on the question to be assessed, which in turn is

influenced by the availability of data.

In order to build an integrated infrastructure of empirical comparative

studies, comparative scholars may resort to different integrated techniques

138
M. Siems, Comparative Law, Cambridge University Press, 2014.
139
M. Heise, The Importance of Being Empirical, 26 Pepp. L. Rev. 807, 1998.

G. Mitchell, Empirical legal scholarship as scientific dialogue, 83 North Carol.

140

Law Rev., 2004.

63
such as triangulation141, id est the “employment of multiple methods and data

sources in order to enhance the validity of findings”142, methods mixing, id est the

combination of qualitative and quantitative tools to various degrees and

interdisciplinary cherry-picking, id est the use of tools and techniques

borrowed from other disciplines.

As said above, a first opportunity available to comparative scholars for an

improvement of the validity of their findings is triangulation. This method

allows the researcher to cross-test its findings and thus cancel out potential

biases and dismiss rival explanations. The result is that the validity of

findings is self-reinforced via different processes.

Methods mixing143, as we have highlighted above, is instead valuable

especially for multilayered analyses: qualitative studies suit as a foundation

to quantitative studies, which in turn gives breadth to the former and

141
The concept of triangulation was first introduced in a paper published
by Webb et al. in 1966 and then extensively discussed in 1978 by Denzin.
According to Denzin, triangulation comes in four forms: data
triangulation, investigator triangulation, theoretical triangulation and
methodological triangulation.
142
S. Mathison, Why triangulate?, 17.2 Educational researcher 13-17, 1988.
143
With regard to mixing methods, see J. Greene, Engaging critical issues in
social inquiry by mixing methods, 56.6 American Behavioral Scientist 755-773,
2012. K. Howe, M. Eisenhart, Standards for qualitative (and quantitative)
research: a prolegomenon, 19.4 Educational researcher 2-9, 1990; T. Jick,
Mixing qualitative and quantitative methods: Triangulation in action,
Administrative Science Quarterly 602-611, 1979.

64
provide valuable tools for defining the variables needed for testing and

controlling for the hypotheses, finally synthetizing the findings in a

generalizable, logically coherent, theory144.

This methodological dialogue resulting from the overlapping of traditions

on the one side generates a deeper understanding of social phenomena,

and on the other side assures that the scholar can go fishing into teeming

waters.

Indeed, generating research on the sole basis of looming questions

discounts an high risk of answering to useless questions, which is like on

the one side having stockpiles of ink without a tool for making use of it,

while on the other side having a fancy pen without ink.

Lastly, interdisciplinary cherry-picking can be useful in that it allows the

scholar to selectively borrow useful tools from other fields and readapt

them to the needs of her scholarship.

In the end, “[…] it would be unfortunate in this field to reproduce the hierarchies of

methodology that have plagued other disciplines like sociology and political science”145.

144
See H. Brady, D. Collier (eds.), Rethinking social inquiry: diverse tools,
shared standards, 2010; H. Chodosh, Comparing Comparisons: In Search of
Methodology, 84 Iowa L. Rev. 1025, 1998-1999; G. King, R. Keohane, S.
Verba, Designing social inquiry: Scientific inference in qualitative research, Princeton
University Press, 1994.

65
Nonetheless, triangulation, methods mixing and interdisciplinary cherry-

picking have their own problems, the main one being that in order to be

practiced, they require expertise in the respective techniques. And this is

the reason why the on methodological grounds empirical comparative

legal scholar shall become a Janus Bifrons.

V. JANUS BIFRONS

We shall shore ourselves out of the tyranny of single methods: empirical

comparative analysis needs support from both capita of the same coin146,

which (at least in comparative legal studies) have always been

unfortunately considered as separate and conflicting147.

In recent times H. Brady and D. Collier have depicted the general status of

legal empiricism as follows: “the past decades have seen the emergence of an

impressive spectrum of new techniques from quantitative analysis as well as strong

resurgence of interest in developing and further refining the tools of qualitative

145 Comment posted by by L. Nielsen on Robert Nelson’s article on

Combining Quantitative and Qualitative Methods in Socio-legal Research,
http://www.elsblog.org, 22 June 2006.
146 In this sense, see W. Twining, The Idea of Juristic Method: A Tribute to Karl
Llewellyn, 48 U. Miami L. Rev. 119, 1993.
See V. Palmer, op. cit.. M. Reimann, The End of Comparative Law as an
147

Autonomous Subject, 11 Til. Eur. & Civ. L. F. 49, 1996.

66
research”148. The empirical turn of legal analysis thus aligns with a credibility

revolution149 in empirical economics, which is focused on research

designs150.

It is therefore expected that now more than ever in the past, there should

be a methodological dialogue between the two, directed towards their

reunion under an empirical agenda aimed at rebutting the idea that in

social sciences “there is not a set of principles that unifies scientific work”151 and

foster cooperation between colleagues with different skills and traditions,

in the consciousness that not all of the analytical goals of the legal

comparative enterprise can be achieved simultaneously by simply “putting

qualitative flesh on quantitative bones”152 and vice versa. Indeed, every

discipline has specific methodological problems which are “unique to the

148 H. Brady, D. Collier (eds.), Rethinking social inquiry: diverse tools, shared
standards, 2010, p. 125. See also G. Shaffer, T. Ginsburg, op. cit.; U. Mattei,
A. Monti, Comparative Law and Economics: Borrowing and Resistance, 1.2
Global Jurist Frontiers, 2001.

149
J. Angrist, J.-S. Pischke, The Credibility Revolution in Empirical Economics:
How Better Research Design Is Taking the Con out of Econometrics, 24 J. Econ.
Persp. 3, 2010.
150
See also J. Gelbach, J. Klick, Empirical Law and Economics, 2014.
151
G. Goertz, J. Mahoney, op. cit., p. 220.
152
H. Brady, D. Collier (eds.), Rethinking social inquiry: diverse tools, shared
standards, 2010, p. 106.

67
special concerns in that area”153. Comparative law makes no exception.

Therefore, integration requires the modification to a certain extent of the

methods which have been used up to now, with the primary end of

producing testable predictions for the falsification of logically deductible

theories.

In this way, comparative law will be able to regenerate itself and find

unexplored corners of law or corners to be enlightened in a different way

in order to reexamine previously inferred theories: “the list of legal research

questions that would benefit from empirical analysis already staggers and continues to

grow”154.

We shall now ask ourselves what are our frontiers and our goals, but first

we need to rest from our journey. The caravanserai is finally waiting for us.

H. Kritzer, The (nearly) forgotten early empirical legal research in Peter Cane &
153

Herbert M. Kritzer (eds.), The Oxford Handbook of Empirical Legal Research,

Oxford University Press, 2010, p. 902.

M. Heise, The Past, Present, and Future of Empirical Legal Scholarship: Judicial
154

Decision Making and the New Empiricism, U. Ill. L. Rev., 2002, p. 827.

68
 CHAPTER III
AT THE CARAVANSERAI:
FRONTIERS AND GOALS OF
EMPIRICAL COMPARATIVE LAW

SUMMARY: I. At the caravanserai. - II. Frontiers - III. -An “ideal” law? -

IV. Understanding, reform and unification. - V. The empirical comparative
scholar: homo universalis.

I. AT THE CARAVANSERAI

Our journey through the emerging empirical comparative literature led us

to an intermediate destination, which can also be regarded as the new

starting point from which to resume the analysis. Like the caravans in the

desert we shall now rest a bit from our travel: the caravanserai is waiting

for us.

At this point, it should be already clear that the empirical comparative

enterprise cannot be taken with a “just do it” versus “just don’t” do it

approach155.

155“Economists, as well as other social scientists, have also tried to measure legal rules
and institutions. Their approach is often a ‘just do it’ one, implicitly assuming that the
complexity of the law does not prevent it from being turned into numbers. Many legal
academics, by contrast, have the attitude of ‘just don’t do it’, for instance,
bluntly saying that ‘law is about things that are not quantifiable’”. M. Siems,
Measuring the Immeasurable: How to Turn Law into Numbers, in M. Faure, J.
Smits (eds.) Does law matter? On law and economic growth, Intersentia,
2011.

69
The scholarship must be handled, safeguarded and promoted with

attention. Also, it must be not identified as and the one and only possible

epiphany of comparative legal studies: simply put, it is not. Empirical

analysis is not the promised land of comparative scholars.

Many will happily keep running the traditional analysis that they have been

conducting for many of their academic years.

Yet, empirical comparative studies may humbly serve to those who want

to take advantage of technology and update their methodological toolkits,

employing the new tools which allow us to inject life into what we had

considered a byproduct of traditional research, data, as well as into the

older blunt tools of the past. This is light of enabling the scholars to deal

with a brand new wide array of open questions which can serve as a

methodological guide towards a better understanding, reform and

unification.

II. FRONTIERS

We have now reached the pillars of Hercules of the scholarship, and shall

now briefly discuss (at least some) potential new directions. A first topic

located at the frontiers of comparative empiricism there are longitudinal

70
studies. Our claim is that the analysis of comparative law has often missed

one of its fundamental axes: time156.

However, a diachronic perspective in empirical works becomes inevitable,

as descriptive research necessarily deals with data that have been collected

in some moment of the past157 and, in ascertaining the effects of a given

rule, explanatory research cannot disregard its evolution over time.

Nonetheless, too often comparative scholar have made use of cross

sectional research, which just examines data at a single point in time. On

the contrary, they have often neglected time series, which serve for

contrasting the observed phenomenon over time, in order to find out its

hidden patterns and trends and hence overcome the structural limitations

of static models.

156For a brief discussion of the topic see R. Cooter, T. Ginsburg, Why the
same laws are longer in some countries than others, U. Ill. Law & Econ. Research
Paper LE 03-012, 2003, esp. p. 23 and 24.
157See D. Klerman, Economic Analysis of Legal History, in USC Class
Research Paper No. 14-15, 2014; M. Siems, Statistische Rechtsvergleichung, in
Rabels Zeitschrift für ausländisches und internationales Privatrecht/The
Rabel Journal of Comparative and International Private Law, 354-390,
2008, esp. p. 390.

71
A second topic regards the role of behavioral analysis, intended as the

understanding of the mechanisms which regulate human behavior,

especially in respect to judgment and decision making.

It has been correctly observed that comparative scholars are “already

capitalizing on research in behavioral economics by using this research’s insights on how

people actually behave – as opposed to mere hypothesized behavior – as a basis for

evaluating the effectiveness (or efficiency) of supranational rules or doctrines”158.

Therefore, it is relevant to ask ourselves whether (at least some) the

methodological pitfalls of comparative law might be solved with the help

of behavioral insights.

First of all, behavioral analysis can give us a better idea of the cultural

variables embedded in human behavior at both a macro and a micro level

and hence express measures which are more respondent to the needs of

regulation (or de-regulation) than the synthetic variables employed by

current empirical projects159.

158
J. DE CONINCK, Reinvigorating Comparative Law through Behavioral
Economics? A Cautiously Optimistic View, 7.3 Review of Law & Economics,
2011, p. 712.
159
See supra, chapter I, para. II.

72
Because of the fact that cultural variables are located outside of legal

systems, they can also be considered more neutral and therefore provide

an aseptic and reliable description of functional problems.

A third possible frontier is that of identifying field-specific tools160 which

can be especially suitable for comparative legal studies.

Tools that - moving from the consciousness that legal systems provide

many different solutions to the same problem - will be able to identify

functional equivalents and overcome the boundaries imposed by the

knowledge of the researchers conducting the study161.

Lastly, it seems unavoidable the creation of an integrated jargon which

deconstructs legal notions, assures that all of their founding elements are

represented among the components162 and reduces terminological

differences amongst jurisdictions by attributing a more pragmatic and

uniform signification of the concepts being considered163.

On the need of which, see U. Mattei, A. Monti, Comparative Law and

160

Economics: Borrowing and Resistance, 1.2 Global Jurist Frontiers, 2001.

K. Pistor, Rethinking the Law and Finance Paradigm, BYU L. Rev., 1647,
161

2009.
162
See J. Vanderlinden, Comparer les droits, Kluwer Belgique 1995.
For a discussion of which see R. Sacco, One Hundred Years of Comparative
163

Law, 75 Tulane Law Review, 2001.

73
 III. AN “IDEAL” LAW?

Let us recall part of our previous cogitations. The consideration that

different solutions are used in order to address functionally equivalent

problems reveals us that, all in all, there is not a single best rule164 which

can fit all of the legal systems into which it is imported.

As different countries make use of different metrics (kilograms and

pounds; meters and yards), and yet manage to trade with each other at a

global level, it is likewise not necessary that a single measure is established

in respect to all the countries for comparisons to take place.

Indeed, a one-sized model which can be used for each country does not

exist. Even if we formulate a given problem in the most neutral of

possible languages, still we cannot obtain an universally workable single

solution. This is because most of the questions are contingent to the

spatial and temporal framework within which they emerge165.

B. Luppi, F. Parisi, Quantitative Methods in Comparative Law, in Minnesota

164

Legal Studies Research Paper, 2012.

R. Michaels, The Second Wave of Comparative Law and Economics?, 59

165

University of Toronto Law Journal 2, 197-213, 2009, p. 204.

74
Certainly, a good rule may be identified from the fact that it remains in

force: legal systems perpetuate the selection of increasingly more efficient

rules166.

Efficiency, however, is just one the possible benchmarks (or tertia

comparationis167), against to which different legal systems can be

measured168.

By using efficiency as a benchmark, we can isolate the variables which

contribute to or detract from the relative efficiency of those systems and

solutions, and discuss the benefits or drawbacks of those variables169 in

order to develop a model, test and falsify it.

166
F. Parisi, V. Fon, The economics of lawmaking, Oxford University Press,
2009, p. 97.
167
Other Authors such as Chodosh, op. cit., p. 1107, use prototypes of law
as “efficient tertia comparations”.
168
According to K. Pistor, Rethinking the Law and Finance Paradigm, BYU L.
Rev., 1647, 2009, “by simply asking whether a particular legal provision exists or
does not stem, large n-studies commit what is widely regarded as a cardinal error in
comparative institutional analysis: they assume that there is only a single solution to a
problem”. See also N. Jansen, Comparative Law and Comparative Knowledge, in
Mathias Reimann & Reinhard Zimmermann (eds.), The Oxford
Handbook of Comparative Law, 2006, p. 305.

C. Rogers, Gulliver's Troubled Travels, or the Conundrum of Comparative Law,

169

67 George Washington Law Review 149, 1998.

75
Comparative scholarship can also assess the performance of legal rules on

the basis of alternative criteria. For example, an hypothetical polarity can

be created in relation to the concept of fairness170.

The same meaning of fair remains of course more than debatable.

However, the main point of this construction would be to link the ideal

optimum to moral values more than to economic notions171.

IV. UNDERSTANDING, UNIFICATION AND REFORM

The reflection on fairness outlined above makes us aware of another

necessary aspect of empirical comparative research, is to say that it embeds

170 For an analysis of fairness in law and economics, see L. Fennell, R.

McAdams, Fairness in Law and Economics: Introduction, in Fairness in Law and
Economics (Lee Anne Fennell and Richard H. McAdams eds.), Edward
Elgar, 2013 and T. Ulen, Law and economics, the moral limits of the market, and
threshold deontology, in Law and Economics: Philosophical Issues and
Fundamental Questions, 2015.
171
For a discussion of values in comparative law se J.B. Fischman, Reuniting
'Is' And 'Ought' In Empirical Legal Scholarship in University of Pennsylvania Law
Review, 162(1), 2013, p. 158: “In any of these pursuits, however, the importance of
the research must be assessed by reference to values. This is not to say that empiricists
must personally take controversial positions in normative debates; one can
acknowledge the viewpoints held by others without endorsing them. It is not too
much to ask, however, that empirical research proceed in a conscious recognition of the
values it intends to serve, and that scholars make efforts to clarify how their findings
relate to the values that motivated their research”.

76
a certain degree of political ideology172: indeed, institutions can influence

the outcome of comparative research by “placing constraints on what can be

done […], persuading researchers to undertake only policy relevant research, that is

defining the problem in terms seen as appropriate by the dominant institution; and

requiring research findings to be expressed in terms of variables over which the

institution has a measure of control”173.

The self-reinforcing spiral from institutions to legal rules and from rules to

institutions exerts a considerable potential in influencing public policy174.

The willingness to climb a ranking can lead to dangerous race to the

bottom among countries, carried out by mean of wrong or useless

reforms, which may well end up in neglecting the real needs of a definite

172 “Empirical law and economics can provide a useful guidance for the calibration of
policies and the design of legal institutions”, see B. Luppi, F. Parisi, Quantitative
Methods in Comparative Law, in Minnesota Legal Studies Research Paper,
2012. See also M. Mcconville, Development of empirical techniques and theory in
research methods for law, in M. McConville, W Chui (eds.), Research methods
for law, Edinburgh University Press, 2010, esp. p. 224 and M. Heise, The
Importance of Being Empirical, 26 Pepp. L. Rev. 807, 1998.

173See M. Mcconville, Development of empirical techniques and theory in research

methods for law, in M. McConville, W Chui (eds.), Research methods for law,
Edinburgh University Press, 2010, esp. p. 213.

174 L. Gordon, The Empiricists Legal Scholars at the Forefront of Data-Based

Research, 2010, https://stanfordlawyer.law.stanford.edu/2010/05/the-
empiricists.

77
legal system, as it has been the case for certain aspects of the Doing Business

reports175.

The empirical comparative scholarship shall therefore aim towards (i) a

better understanding of status quos ; (ii) a reduction of the differences of

legal concepts, ideally directed to their unification and (iii)a series of

reforms ameliorative of legal systems176.

V. THE EMPIRICAL COMPARATIVE SCHOLAR:

HOMO UNIVERSALIS

Comparative legal scholars shall therefore assume a subversive role in

respect to the legal establishment177 both with regard to the means and

ends they advocate for, and both with regard to their approach to the

scholarship.

175 See supra, chapter I, para. II. See also M. Siems, Statistische
Rechtsvergleichung, in Rabels Zeitschrift für ausländisches und internationales
Privatrecht/The Rabel Journal of Comparative and International Private
Law, 354-390, 2008, esp. p. 390.
176Since these three goals are conceptually autonomous, they may also be
pursued independently of each another.

G. Fletcher, Comparative Law as a Subversive Discipline, in Am. J. Comp.

177

Law, 683-700, 1998.

78
They shall (re)gain a role of social engineers178, developing an integrated

methodology built upon synergism between different disciplines. In the

future, comparative scholars will be able to justify their existence as a

species only and if they will be able to better their understanding of the

world as it is and as it ought to be.

This is not an easy task: nowadays we live in a world which presents many

more complexities than it used to be in the past.

Therefore, scholars must soak into themselves the basic tenet which

characterized humanist academia during Renaissance: the construction of

an homo universalis. One who delves into complex bodies of knowledge with

an unquenchable thirst for knowledge and an imaginative mind. A scholar

who goes takes on his shoulders a rounded education in order to achieve

the polymathic traits which enable him to acquire solid skills in different

fields and methods. Such personalities being around, technology will have

a long and difficult task in getting ahead of human beings.

178
R. Pardolesi, M. Granieri, The Future of Law Professors and Comparative
Law, in The Digest. National Italian American Bar Association Law
Journal 1-26, 2013.

79
 CONCLUSIONS

Finally, we note down the impressions of our journey. We can start with a

quote which wraps it up pretty well: “The new legal empiricism could yet falter

and fade, as have other legal empiricism before it. The new legal empiricism could also

triumph, emerging as both a dominant force within the legal academy and a valid,

methodologically rigorous, and conceptually rich social science in its own right. Or the

new legal empiricism could become a niche venture”179. A plain truth.

In sum, this work has highlighted the hand protruded by empiricism to

comparative legal studies - by nature an anti-dogmatic enterprise180 -in

order for them to regain traction as an autonomous scholarship.

Notwithstanding, this work has also given accounts of the limitations of

the armchair empiricism fostered by “the new almighty producers of global law,

the international institutions of global governance”181.

Also, it has reported the uncertainties shadowing its methodologies and

goals. Empirical scholars shall thus beware of dogmatism in realist’s

M. Suchman, E. Mertz, A New Legal Empiricism? Assessing ELS and

179

NLR, in Annual Review of Law and Social Science Vol. 6, 2010.

180R. Pardolesi, M. Granieri, The Future of Law Professors and Comparative
Law, in The Digest. National Italian American Bar Association Law
Journal 1-26, 2013.
181
U. Mattei, A. Monti, Comparative Law and Economics: Borrowing and
Resistance, 1.2 Global Jurist Frontiers, 2001, p. 15.

80
clothing, as data can lie (or be used for lying) and yet keep a glaze of

plausibility.

Indeed, by way of empirical analysis scholars are now enabled to

harmonize their theories with their observations, but must not forget that

data have be handled carefully in order to keep the analysis effective.

Therefore, the leading role in this enterprise does not rest on the

scholarship, but rather on its scholars. It is up to them to crave for

becoming polymaths in order to exert their dominion on sciences, and not

let science exert its dominion on them.

How to do it effectively is suggested by a champion in the subversion of

reactionary hegemonies: “educate yourselves because we’ll need all our intelligence.

Agitate because we’ll need all our enthusiasm. Organize yourselves because we’ll need all

our strength.”182.

Education, activism and organization: if the scholars will abide to these

prescriptions, we are optimist that also for comparative legal studies “legal

empiricism’s current incarnation will not merely survive; it will flourish”183.

182 A. Gramsci, L’Ordine Nuovo, I, 1 May 1919 (translated from Italian).

183M. Heise, The Past, Present, and Future of Empirical Legal Scholarship: Judicial
Decision Making and the New Empiricism , U. Ill. L. Rev., 2002, p. 849.

81
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